GIPA Case Studies
See the case studies below which demonstrate how citizens' rights have been preserved under the Government Information (Public Access) Act 2009 (GIPA Act):
Case study #1: Automated decision-making
The digital revolution has fundamentally altered how government both makes its decisions and delivers its services. A feature of this shift is in the increase in third-party providers and outsourcing arrangements made between government agencies and contractors. However, outsourcing should not obstruct a citizen’s right to access data that concerns decisions made by government agencies as a result of this data.
A recipient of rental subsidy applied for access to information from the Department of Family and Community Services to help her to understand how her subsidy had been calculated and how it could be verified. In her case, the subsidy was calculated using software from a third-party provider.
The GIPA Act facilitates accountability for government decisions and services when they are outsourced to third-party providers. Citizens have the legally enforceable right to be provided with access to information in accordance with Part 4 of the GIPA Act unless there is an overriding public interest against disclosure of the information. Section 121 of the GIPA Act requires agencies to preserve that right when they outsource government services.
While providing some information to the applicant, the initial response from the Department of Family and Community Services declined to provide all information on the grounds that this would breach the contractor’s intellectual property. The applicant’s request included access to information including the algorithm used to calculate the subsidy; the software specification used; and the source code used in the software.
The applicant appealed this decision via an application to the Information Commissioner to review the two relevant decisions. The Commissioner made recommendations that the Department of Family and Community Services make new decisions.
The decision is now before the NSW Civil and Administrative Tribunal, and the Commissioner has exercised her right to appear in the proceedings. The case raises urgent questions about the access of information held by both third-party contractors and government agencies.
Case study #2: Farmers use GIPA application to participate in local council decision-making
The 2018 access of local council information is an example of private citizens actively participating in local government processes. Armed with information obtained through this access request, a farmer was able to effect positive change for his community.
In a 2017 closed Council session, Bega Valley Shire Council passed a resolution to cease maintenance of, and responsibility for, two bridges that are located on an access road which crosses private land.
One affected landowner was unaware of the resolution until March, 2018, when he received notice from Council that advised him of its decision to transfer maintenance and responsibility for bridges to him. The landowner used these bridges daily to operate his farm effectively, in a variety of ways. The bridges were used to truck in animal feed during times of drought, to deliver fencing and other essential maintenance items for his land, as well as for property access and essential water supplies. Critically, the bridges were integral to protecting the properties from bushfire and had been used to contain a 2018 fire at Yankees Gap, helping to bring it under control and reduce the threat to other properties in the area.
The landowner filed an application under the GIPA Act for information about the decision arrived at during the closed Council session. Using this information, he was able to form a persuasive argument that was delivered to councillors at a subsequent meeting, when the matter was tabled for further discussion.
The comprehensive rebuttal of Council’s 2017 decision resulted in apologies from three councillors who had voted in support of the motion in the 2017 closed session, including the mayor of Bega Valley Shire. Council’s director of assets and operations brought a further report to Council, which recommended the replacement of one of the bridges with a culvert as well as recommendations to reduce costs for all parties. This reversal of Council’s approach is directly linked to the landowner’s ability to access vital detail on the decision in a timely manner.
This example of a private citizen exercising his right to government information helped to bring about a solution that is beneficial to all parties. It also succeeded in facilitating a higher degree of trust and transparency between the local council and its constituents.
Case study #3: Enforcing the public’s right to know - icare’s path to proactive information release
The GIPA Act requires that all New South Wales government agencies publicly disclose information about external contracts over a value (or anticipated value) of $150,000 including GST. This information is shared via a mandatory contract register and is accessible to anyone with an internet connection. The legislated obligation to disclose contracts in this way facilitates transparency of government agencies and contributes to a level playing field, with competitive tender opportunities open to all and based on value and merit.
In March 2020, the NSW Government workers’ compensation agency, icare, was investigated for non-compliance with this section of the GIPA Act. A review revealed 77 previously undisclosed contracts with a total value of almost $157 million. Some of these contracts were more than two years old and none were disclosed within the required reporting period of 45 working days. Annual reports since 2016-2017 stated that icare was in the process of building a register of contracts as required by the GIPA Act. Failure to deliver on this pledge suggested a culture of secrecy and non-disclosure at icare.
Due to the potential breach of NSW’s Right to Know laws, Information Commissioner Elizabeth Tydd notified icare of the Information and Privacy Commission (IPC)’s intention to carry out a compliance audit on the agency. A stage 1 audit, coupled with icare’s self-assessment, revealed non-compliance by icare and the next step was a desktop audit undertaken by IPC. icare was willing to engage with the process, and to address issues of entrenched non-compliance. On its website, icare published a series of progress updates as it fulfilled its obligation to publish historical contract details.
Organisation leaders play a critical role in promoting awareness and fostering a culture that advances the objectives of the GIPA Act, with agency heads and senior executives accountable for compliance. Public reporting can be an effective tool for agencies with a history of non-compliance to achieve compliance, in addition to educating staff about their obligations to avoid confusion and support reporting processes.
The Information Commissioner made five non-binding recommendations to icare, which detailed methods of achieving compliance as well as a suggested timeline for delivery. The recommendations included addressing the need to transform the internal reporting culture at icare. The goal is to create a push pathway: the routine proactive reporting of contracts that will engender a pro-integrity purpose for agencies, serving icare and NSW citizens alike.
Committed to internal transformation, icare adopted all recommendations and provided an overview of measures it will take in response to the recommendations. IPC continues to engage with icare to support the agency to examine systems and processes and ensure future compliance. Phase 2 of IPC’s audit more specifically examined icare’s past and current compliance with the GIPA Act. The IPC commends icare’s willingness to engage with proactive disclosure and acknowledges the need to continue to clearly communicate with agencies to support full understanding of their obligations.